April 3, 2017

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The Senate Judiciary Committee approved Neil Gorsuch’s nomination in an 11-to-9 party-line vote today. But 41 Senate Democrats have now pledged to oppose Gorsuch, which gives them the votes needed to block his nomination. In response to a planned Democratic filibuster, Republicans say they’ll invoke the nuclear option for Supreme Court nominations and confirm Gorsuch with a simple majority of 51 votes. “Judge Gorsuch is going to be confirmed,” Mitch McConnell vowed on Sunday.

In addition to conservative supporters of Gorsuch, some liberal legal experts have also raised doubts about filibustering Gorsuch. “I have no doubt that a Justice Gorsuch will be awful for progressives on the issues that they care the most about: abortion, affirmative action, campaign finance, voting rights, environmental protection, gun rights, and everything else,” writes UC Irvine law professor Rick Hasen. But he cautions:2

Imagine if in a year or so Justices Breyer, Ginsburg, or Kennedy leave the Court. Then things get MUCH worse from the point of view of progressives. Then Roberts becomes the swing voter and there goes affirmative action, abortion rights, etc. If you think things with the Supreme Court are bad for progressive now they can get much, much worse.3

Better to save the firepower for that fight. It is possible that Senators like Susan Collins would be squeamish about such a nominee, and they might not vote to go nuclear. At that point, people can take to the streets and exert public pressure. At that point, the left will perhaps realize what they lost when they lost the 2016 election and how bad things will be.4

The problem with this argument is that it’s delusional to believe that Mitch McConnell—who prevented Merrick Garland from even receiving a hearing—would allow Democrats to filibuster the next Supreme Court vacancy if they allow Gorsuch to go through. If Justice Kennedy or a liberal justice like Ginsburg or Breyer stepped down and Republicans had the ability to overturn landmark laws like Roe v. Wade with a 6-to-3 vote, they would do everything in their power to make it happen and wouldn’t blink for a second about going nuclear. Moreover, because a number of red-state Democrats are up for reelection in 2018, Senate Democrats may have fewer seats and even less leverage when the next Supreme Court vacancy occurs.5

There are at least five good reasons to oppose Gorsuch now.6

The first reason is Merrick Garland. We wouldn’t even be talking about Gorsuch if Republicans hadn’t stolen a Supreme Court seat from President Obama. And now Republicans are engaged in an unbelievable rewriting of history, literally deleting Garland from recent memory. “Even President Obama’s two Supreme Court nominees were recognized for their ability to do the job and confirmed without incident,” Arizona Senator Jeff Flake wrote in The Arizona Republic on March 25. Except there were three nominees!7

4

5

Republicans must pay a price for their unprecedented obstructionism. “I have a very hard time getting over what was done to Merrick Garland, a very hard time,” moderate Democratic Senator Tom Carper of Delaware told The Washington Post. “That’s a wrong that should be righted, we have a chance to do that, and it won’t be by confirming Judge Gorsuch the first time through.”8

The second reason is Gorsuch’s own record, as I’ve written during his confirmation hearings:9

The third reason is his refusal to answer even basic questions about his judicial philosophy before the Senate. Writes Garrett Epps in The Atlantic:11

In his answers to senators, Gorsuch seemed like a man whom one would dread sitting next to on a long airplane trip. The charm he displayed was oddly repellent; his vaunted humility was relentlessly overbearing; and his open-mindedness was rigidly dogmatic. He seemed to have trouble concealing contempt for the process, his questioners, and the public itself.12

Gorsuch was by turns condescending, evasive, and even dishonest. In fact, it’s not too much to say that he, in his aw-shucks gentlemanly way, gaslighted the committee in a genteel but nonetheless Trumpian style.13

Senators Tammy Duckworth and Catherine Cortez Masto said recently that Gorsuch refused to meet with them, which is the height of arrogance for a nominee up for a lifetime appointment.14

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The fourth reason is that the president who nominated Gorsuch is under FBI investigation for colluding with Russia, which casts further doubt on the legitimacy of this process. As Elizabeth Warren tweeted, “Is the Senate really going to pretend there’s no cloud over @realDonaldTrump & move on w/ the Gorsuch nomination like things are normal?”15

The fifth reason is that Gorsuch could tip the balance of power on the Court for the next 40 to 50 years. Some argue that replacing one Scalia on the Court with another isn’t that big of a deal. Yet nearly all of the worst opinions by the Roberts Court—the gutting of the Voting Rights Act, Citizens United, Hobby Lobby, District of Columbia v. Heller—were 5-to-4 decisions. Gorsuch would immediately shift the Court to the right. On issues like voting rights, that could mean reinstating discriminatory voting restrictions and gerrymandered maps in states like North Carolina and Texas that have been blocked by the lower courts.16

Democrats might not be able to ultimately block Gorsuch but they at least need to try, as my colleague Joshua Holland writes. Put pressure on moderate Republicans like Susan Collins and Lisa Murkowski. Energize the Democratic base. Shine a spotlight on the importance of the courts. Show the public they stand for something. Caving on Gorsuch will make it harder, not easier, to wage future battles.17

Gorsuch is a corporatist.
Germany was an advanced, Christian country until about the 1930’s, but in a very short time big corporations, including some in the US, funded an unpopular Nazi movement, and a turn to Fascism changed that. Fascism, by dictionary definition, is rule by corporations.

The US forgot those lessons. We elected billionaires who reward themselves at public expense, seem to mainly want tax cuts for themselves, fortified borders, a new round of nuclear weapons, and expansion of the world’s largest military.

To resist Fascism, after WWII, FDR’s Second Bill of Rights was made part of post-war Germany and Japan’s Constitution and they have been more egalitarian and stable as a result. Institutions put in place, the UN, Nuremberg, were intended to stop war. Republicans are working tirelessly to undermine these institutions.

Our elected Republican billionaires despise democracy and undermine its supports: the press, schools, elections, the Courts. We are number one in military, prison population, armaments, deportations, and Republicans are expanding them all.

The Fascist State does not care about its people, which is why there will likely be no improvement in health care, meals-on-wheels, head-start, and so on. Republicans are rolling back all consumer protections. Say goodbye to net neutrality or privacy protection by ISPs (cable companies).

We know from Snowden that the NSA collects bulk communications of all types. We have built the world’s most complete surveillance system ever. Everyone’s messages are gathered and stored, and so were Tr umps. This system was put in place in secret, authorized by the secret FISA Court, and is sure to kill the law, and any democracy that might remain.

Tapes of activity at Guantanamo are so disgusting that they are ‘classified’, but Republicans refuse to close Guantanamo.

As immigrants, people willing to stand in the sun and pick crops, are rounded up and deported there will be new profits for private prisons at the cost of humanitarian crisis. There is sure to be a drop in the number of foreign students and tourists who plan to come here. Ignoring the climate threat will make food shortages a sure thing.

Republican Fascists are working to cement their gains for the next election. There is no reason to think that the system is self-correcting. Brisk sales of dystopian novels may be a warning about the future.

http://www.gopiswrong.com/

(4)(6)

Adriaan N Roggeveensays:

April 4, 2017 at 12:54 am

"We do not need a good reason to block the nomination. There is a good reason, he is not impartial, he is not involved, he is not wiling to be impartial by his own words, while his words may speak of higher moral principles..they are not what is at stake here. He is responsible for speaking to the majority of the population and at the same time trying to see how the 18th century and the 21st century view of things can find concurrency. And.....The Republican decision to block any recommendation of the then Incumbent President, Barack Obama, is, in my opinion, a sorry excuse for the Congress to try and subvert justice and law to have their own way."

(10)(35)

Ronald Holchsays:

April 3, 2017 at 10:24 pm

Thank You Ari for laying it out.
The nuclear option problem is a red herring because it is a sure thing sooner or later.
Gorsuch may not be.
Aren't we all tired of hearing the Dems with their "yes, but" game.

(35)(19)

Ira Dembersays:

April 3, 2017 at 9:26 pm

Thanks to Ari Berman for this concise and clear-eyed look at Neil Gorsuch, a very smooth political slimeball.

The article mentions "gerrymandered maps in states like North Carolina and Texas that have been blocked by the lower courts." Yet I live in Houston district TX-02 that's grotesquely gerrymandered to give the GOP a safe US House seat, essentially disenfranchising me.

In a majority-Democratic city, this seat is held by an extreme-right ideologue, US Rep Ted Poe. Gerrymandered TX-02 lines are shown here: http://fairnow.weebly.com/blog/ghoulish-ted-poe-aims-to-kill-29000-americans.

As the illustration reveals, TX-02 is similar in shape to the the original, corrupt 1812 district lines in Massachusetts that gave "gerrymandering" its name and notorious reputation — so much so, it's almost spooky.

(28)(31)

Walter Pewensays:

April 3, 2017 at 8:02 pm

Thank you, Hillary Clinton. Your greed for the nomination is going to cost millions of women things they cherish most. You simply had to do this. We could have had Sanders, it's clear now and it probably would have worked. I said all along you weren't especially interested in women. Just in YOU. While you took up all the air in the room the Garland nomination was virtually forgotten. But it won't affect you in the least.

(36)(10)

Edward M Protassays:

April 4, 2017 at 10:48 am

I think the focus needs to be moved away from HRC. After all, to paraphrase Bob Dylan, "[s]he's only a pawn in their game." The problem has been, and continues to be, the Democratic Party. When they turned their back on working people for more face time with corporate benefactors, they planted the seeds for Trumps victory. Let's point the finger where it properly belongs. Losing the court to the extreme right is the fault of the party. We should never forget that.

(14)(6)

Walter Pewensays:

April 4, 2017 at 11:32 am

Just remember-she was REJECTED in 08, but came back eight years later, while many of us were already feeling her energy and the murder the neocons represent. She did it ANYWAY. No reason to EVER let it drop, lest we be tricked into similar shit again (if there's even a party left...). You go worry about some macro stuff. I'll be inspecting the goods on my end. Somebody has to and it was not "the party." In any event, I am part of that economic group that mostly walked away. How about you?

(4)(4)

Edward M Protassays:

April 4, 2017 at 12:14 pm

I think "rejected" is the wrong word. The voting record/demographics for '08 clearly show that Americans wanted real change. On the right and left the middle class and working class felt ignored by the governing class, and they "chose" Obama over Clinton as the vehicle for change. When Obama continued to ignore those classes in favor of Wall St. and trade, voters were ready to shake things up - even to the point of trying out a combover, pussy-grabbing clown. The Democratic Party still does not get that. They listened to the wrong siren song and were lured onto the rocks. Thus far it does not appear that their hearing has improved.

(12)(2)

Walter Pewensays:

April 4, 2017 at 4:55 pm

That's putting far too much onus on Obama. Reality is, CBS ran tons of coverage on Trump for ratings, Trump got coverage beyond belief. Gerrymandering, and maybe most important, voter disenfranchisement of 300,000+ people in Wisconsin alone. I don't see all these souls moving from Obama to Trump. That's a nice "beltway" explanation. But it's probably not that accurate.

(3)(4)

Donald Handysays:

April 3, 2017 at 6:22 pm

I saw yesterday where some Senator, I believe from Sout Dakota, said that she would vote for him, even though she's bothered by the Merick Garland debacle, because "Two wrongs don't make a right." This is wrong because for far too long the Democrats have played Mr. Nice Guy, during which time the Republicans have thrown mud in their faces. It's high time that the Democrats finally learned how to fight and stand up for our principles, rather than roll over and play dead. I agree with Ari Berman 100%.

(31)(31)

Curtis Carpentersays:

April 3, 2017 at 5:05 pm

I'm not convinced by any of the five points presented here, and continue to hold with the old maxim that revenge is a dish best served cold. That said though, I'm willing to accept that the Democrats in the Senate have a deeper understanding of both the short- and long game being played out here.

What is the point of making a fight that your side is guaranteed to lose in both the short and the long terms? Unless the nation's capital is struck by an asteroid within the next day or two, Donald Trump's nominee will be confirmed.

Harry Reid's decision to curtail filibusters for most judicial nominees was short-sighted. Senate Democrats' apparent willingness to prompt the Republican majority to curtail filibusters for high court nominees is even more shortsighted, having no goal that is obvious to me except perhaps to vent their frustration.

(22)(5)

Mark Robinettsays:

April 3, 2017 at 4:20 pm

Ari misses the best and most obvious point. Using McConnel's own words, the people should decide who is to make this appointment. The people decided by almost 3 million votes that it should not be Trump.

(14)(50)

Alan Backmansays:

April 3, 2017 at 11:35 am

I rarely agree with liberals. But by all means, please, go ahead and fillibuster Gorsuch. All this will do is force Mcconnell into a corner where he needs to get rid of the fillibuster. And when the "big fight" comes when Ginsburg or Breyer step down, it will be much easier to put a conservative on the bench. I concede the argument that Mcconnell could just as easily do this in subsequent years. But it would be less controversial now given the replacement of Scalia's seat. And it would give Trump a big win. Go right ahead !

(54)(17)

Edward M Protassays:

April 4, 2017 at 10:50 am

So you think that "rolling over and playing dead" is the better way to go?

(4)(5)

Georgia Johnsonsays:

April 4, 2017 at 11:15 am

If the Democratic Party is not "dead", it is certainly moribund after a disastrous defeat at all branches of federal and state government. The moment to respond to Republicans' failure to even consider the Obama nominee to the Supreme Court was a year ago when Democrats at least controlled the presidency. Now Democrats are in a position of profound weakness which will be clearly demonstrated when their Gorsuch filibuster is shattered. I would prefer that they give serious thought to figuring out what went wrong with their political strategy over the past four or more years and correcting it. I have no confidence in Chuck Schumer's ability to do that.